PARVESH BAHRI Vs. UNION TERRITORY OF J&K

JUDGEMENT

(1.) The petitioners are aggrieved of and have challenged order dtd. 21/5/2022 passed by the Divisional Commissioner Kashmir at Srinagar, the prescribed authority under the Jammu and Kashmir Migrant Immoveable Property ( Preservation, Protection and Restraint on Distress Sales) Act, 1997, on an application/complaint titled Harish Bahri v. Abdul Rehman Mantoo and others. By virtue of the impugned order the Divisional Commissioner has held the respondent No.5 a 'migrant' within the meaning of the term defined under Sec. 2 (e) of the Jammu and Kashmir Migrant Immoveable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 (for short 'the Act' hereafter) and declared the alienation of the properties in Khasra Nos. 273 min, 274 min and 1015 min in contravention of the Act and the Rules framed there under. The Tehsildar Budgam, who is delegated the powers of Competent Authority under SO 144 dtd. 31/3/2022, has been directed to take over the possession of the properties and handover the same to respondent No.5.

(2.) Briefly stated the facts, as are relevant to the disposal of the short controversy raised in this petition, are; the petitioner No.1 and respondent No.5 are brothers who were having their Pharmaceutical business in Kashmir. The business was started by the two brothers in partnership and a deed of partnership in this regard was also reduced in writing on 4/8/1972. The petitioner and respondent No.5 started another business in partnership under the name of KAYCEE BAHRI and COMPANY with effect from April, 1989 in terms of a partnership deed executed by the two on 18/8/1989. The said business was being conducted from New Delhi as Commission and forwarding agents of Ranbaxy Laboratory, New Delhi. With a view to conduct the business smoothly, both at Delhi and Srinagar and for proper management of the properties, two power of attorneys were executed by and between them, i.e. one by the petitioner No.1 in favour of respondent No.5 dtd. 2/12/2000 and another by respondent No.5 in favour of petitioner No.1 dtd. 4/12/2000. On the strength of power of attorney executed by respondent No.5 in favour of petitioner No.1, which also envisaged the appointment of sub-attorney/further attorney by the petitioner No.1, the petitioner No.1 issued a power of attorney in favour of one Mohd Akram Dar R/O Humhama, giving him the power and authority to sell the land which was standing in the name of respondent No.5. On the basis of the power of attorney executed by the petitioner No.1 in his favour, Mohd Akram Dar executed two sale deeds in favour of two different persons for consideration. The sale deeds so executed were also registered and mutations on the basis thereof were also attested in favour of the Vendees of these deeds. It is alleged by the respondent No.5 in his complaint filed before the Divisional Commissioner Kashmir, Srinagar, that petitioner No.1 misused the power of attorney executed in his favour and unauthorizedly and without seeking prior permission of the prescribed authority, alienated his landed property. The respondent No.5 in his complaint claimed that he was a migrant and, therefore, entitled to the protection of his immoveable property under the Act. The Divisional Commissioner entertained the complaint of respondent No.5 and after holding an enquiry and relying upon some reports of the field agencies of the Revenue Department, concluded that respondent No.5, the complainant before him, was a migrant and, therefore, alienation of his properties falling under Khasra Nos. 273 min, 274 min and 1015 min situated at Humhama, Srinagar, were 'distressed sales' and without requisite permission of the competent authority. Holding that the alienations were null and void, the Divisional Commissioner directed the Tehsildar, Budgam to take over the possession of the properties subject matter of impugned sales with a further direction to subsequently handover the same to respondent No.5. It is this order of the Divisional Commissioner dtd. 21/5/2022 which is called in question in this petition.

(3.) Having heard learned counsel for the parties and perused the material on record, a short question, which relates to jurisdiction of the Divisional Commissioner to entertain the complaint and pass the impugned order, arises for determination in this petition. For clarity and better appreciation, the question that has arisen for determination is framed in the following manner:-